Federalism

Political Identity and Tragic Compromise

Malcolm M. Feeley and Edward Rubin

Publication Year: 2008

This is a brilliant book that all who consider are interested in the Constitution---judges, lawyers, and professors---must read. ---Erwin Chemerinsky, Dean of Donald Bren School of Law, University of California at Irvine "Professors Feeley and Rubin clearly define what is and is not federal system. This book should be required for serious students of comparative government and American government." ---G. Ross Stephens, Professor Emeritus of Political Science, University of Missouri, Kansas City "At last, an insightful examination of federalism stripped of its romance. An absolutely splendid book, rigorous but still accessible." ---Larry Yackle, Professor of Law, Boston University "A thought-provoking book on the nature of national-state relations in the United States federal system." ---Joseph F. Zimmerman, Professor of Political Science, Rockefeller College, University at Albany Federalism refers to a system in which a centralized national government shares power with member states. Beyond this most basic definition, however, scholars debate the applications and implications of the term. Joining the concept of identity from political science with legal principle, Malcolm M. Feeley and Edward Rubin propose a theory of federalism and test the relevance of federalism for the United States today. Essentially, federalism represents a compromise among groups who refuse to yield autonomy yet acknowledge the benefits of forming a nation. As in the African and Asian nations forged from former colonies, federalism allows the member states---often dominated by ethnic minorities---to remain largely self-governing. In this way, a young nation can avoid secession and civil war while the people within its borders gradually abandon their local identities and come to view themselves as citizens of the nation. The United States, Feeley and Rubin remind us, faced a similar situation in the eighteenth century as thirteen regionally distinct, ethnically diverse, and highly independent British colonies came together to found a nation. Despite the Civil War and the upheaval of the Civil Rights Movement, the federalist strategy ultimately succeeded. For the United States in the early twenty-first century, thanks to the rise of a strong national identity and a ubiquitous bureaucracy, federalism has become obsolete. This bold argument is certain to provoke controversy. Malcolm M. Feeley is Claire Sanders Clements Dean's Chair Professor of Law at the University of California, Berkeley. Edward Rubin is Dean of the Vanderbilt University Law School and the school's first John Wade-Kent Syverud Professor of Law.

Cover

Frontmatter

Contents

Preface

In a previous book, we explored the role of the federal courts in reforming conditions in American prisons. One of our findings was that principles of federalism did not deter the courts from revamping state prison systems.The federal courts simply ignored the weight of history—the Thirteenth Amendment, the century-old “hands-off” doctrine, the lack of precedent—...

Introduction: Why We Need a Theory of Federalism

In the mid-nineteenth century, two-thirds of the world’s landmass was governed by imperial edict. In the early twenty-first century, according to many political theorists, this same proportion of the world is governed by federal arrangement. Indeed, some theorists claim that the
proportion could be much higher. Writing in 1994, the late Daniel Elazar ...

Chapter 1. What is Federalism?

In order to discuss federalism (at a theoretical level at least), it is necessary to define it. This immediately raises a number of the complexities that beset this subject and that mechanistic discussions of it tend to ignore or obscure. In fact, the problem is sufficiently complex that
no mere definition will suffice. However clear one tries to be about such an ...

Chapter 2. Why Federalism? The Tragic Aspect of Politics

It is one thing to define or demarcate a political concept; it is another thing to describe its purpose. Labels can be attached to all sorts of political arrangement. One could have a term for a regime with a ruling military junta, a bicameral legislature, and a constitutional court, for
example, but the ...

Chapter 3. Federalism in Political Science

The previous two chapters presented, in generalized terms, a theoretical approach to federalism. We began by defining the concept of federalism as a grant of partial autonomy to geographical subunits of a nation and by distinguishing it from closely associated, but basically different, institutional arrangements, such as consociation, decentralization,
and democracy. We then proceeded ...

Chapter 4. Federalism in America

The United States has always considered itself a federal nation, and other nations generally regard it as such. But this characterization, often derived from governmental structures that are actually consociative, decentralized, or merely democratic, has been plagued by the ambiguity that attends the entire subject of federalism. The nature and ...

Chapter 5. The Judicial Doctrine of Federalism

As stated at the outset, this book is about the theory of federalism, not about the legal doctrine of federalism that American constitutional courts have developed. Its goal is to approach federalism as a principle of political organization, without becoming immersed in the
infinite complexities of the judicial decisions that have attracted so much ...

Conclusion

Now that we have reached the end of our discussion, it seems appropriate to review the ground we have covered. Our aim in this book is to provide a theoretical approach to federalism, a general account of this specific mode of organizing the government of a political entity.
Such an account necessarily begins with a definition, as there is very little ...

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